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Individual Insurance Mandate Held Unconstitutional Again

A
second federal district court has held that the individual insurance
mandate in the health care reform legislation is unconstitutional
(Florida v. Department of Health and Human
Services, No. 3:10-cv-91-RV/EMT (N.D. Fla. 1/31/11)). And, in
this case, the court has refused to sever the mandate from the rest
of the legislation, declaring the entire act void.

The
case was brought by the attorneys general and/or governors of 26
states against the U.S. Departments of Health and Human Services,
Treasury, and Labor, and it challenged the constitutionality of the
health care legislation under the Commerce Clause, the Spending
Clause, and the Ninth and Tenth Amendments to the U.S. Constitution.

IRC
§ 5000A requires U.S. citizens and legal residents to maintain
minimum amounts of health insurance coverage, starting in 2014.
Individuals who fail to maintain minimum essential coverage will be
charged a penalty. The plaintiffs challenged the constitutionality
of this provision, arguing that it exceeds Congress’ power under the
Commerce Clause (U.S. Const., art. I, § 8, cl. 3).

The
key issue was whether not having insurance amounts to an activity
that substantially affects interstate commerce, which Congress has
the power to regulate under the Commerce Clause. The plaintiffs
argued that the Commerce Clause can only reach individuals engaged
in an “activity,” and because failure to purchase health insurance
is “inactivity,” it is beyond Congress’ power to regulate.

The
defendants argued that “activity” is not required before Congress
can act under the Commerce Clause and, even if it is required, that
not having insurance constitutes activity. They also argued that the
individual mandate falls within Congress’ power to “make all Laws
which shall be necessary and proper” (U.S. Const., art. I, § 8, cl.
18) to regulate interstate commerce.

After
a lengthy review of the history of Commerce Clause jurisprudence,
the court concluded that Congress can only regulate “activity” under
the Commerce Clause and that it would be a “radical departure from
existing case law to hold that Congress can regulate inactivity
under the Commerce Clause” (slip op. at 42). The court went on to
hold that section 5000A attempts to regulate inactivity (that is,
the failure to purchase health insurance) and is therefore
unconstitutional because it lies outside of Congress’ Commerce
Clause power. The court rejected the defendants’ argument that,
because uninsured individuals have an economic effect on the health
care market, they are engaged in interstate commerce.

The
court also held that the defendants’ argument under the Necessary
and Proper Clause failed because that clause “cannot be utilized to
‘pass laws for the accomplishment of objects’ that are not within
Congress’ enumerated powers” (slip op. at 62).

After
ruling the individual insurance mandate unconstitutional, the court
refused to sever it from the rest of the health care legislation.
The court noted that the legislation does not contain a severability
clause (although earlier drafts of the legislation had contained a
severability clause, it was removed before enactment). It also noted
the defendants’ argument and Congress’ acknowledgment that the
mandate is “essential to the Act’s comprehensive scheme to ensure
that health insurance is available and affordable” (slip op. at 69-70).

Because
it found the individual insurance mandate was not severable from the
rest of the health care legislation, the court held all of the
health care legislation to be void. However, the court refused to
enjoin implementation of the act on the presumption that “the
Executive Branch will adhere to the law as declared by the court”
(slip op. at 75).

In
December, the U.S. District Court for the Eastern District of
Virginia also held that the individual insurance mandate was
unconstitutional, but that court severed the mandate from the rest
of the health care reform legislation (Virginia v.
Sebelius, 728 F. Supp. 2d 768 (E.D. Va. 2010)). (See “Federal Court Rules
Health Care Insurance Mandate Unconstitutional.”)
The Fourth Circuit has granted expedited review in this case.

Two
other federal courts have held the individual mandate to be a proper
exercise of Congress’ commerce power (Liberty Univ. v.
Geithner, No. 10-2347 (W.D. Va. 11/30/10) (currently on appeal
to the Fourth Circuit); Thomas More Law Center v.
Obama, 720 F. Supp. 2d 882 (E.D. Mich. 2010) (currently on
appeal to the Sixth Circuit)).

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